On
Plaintiff Lawrence Tyrrell's application for disability
insurance benefits under Title II of the Social Security Act,
Defendant, the Social Security Administration Acting
Commissioner, found that Plaintiff has certain medically
determinable impairments, but that the impairments are not
“severe.” Defendant, therefore, denied
Plaintiff's request for disability benefits. Plaintiff
filed this action for judicial review of Defendant's
final administrative decision pursuant to 42 U.S.C. §
405(g).

Following
a review of the record, and after consideration of the
parties' arguments, I recommend the Court vacate the
administrative decision and remand the matter for further
proceedings.

The
Administrative Findings

The
Commissioner's final decision is the November 12, 2015,
decision of the Administrative Law Judge (ALJ). (ECF No.
9-2.)[1] The ALJ's decision tracks the familiar
five-step sequential evaluation process for analyzing social
security disability claims, 20 C.F.R. §§ 404.1520,
416.920, but concludes at step 2 of the process.

The ALJ
found that Plaintiff has several impairments, including but
not limited to right ankle degenerative joint disease and
thoracic spine disorder, but that the impairments are not
severe. (Id. ¶¶ 3, 4.) In other words, the
ALJ found that Plaintiff does not have an impairment or
combination of impairments that has significantly limited (or
is expected to significantly limit) Plaintiff's ability
to perform basic work-related activities for twelve
consecutive months. (Id. ¶ 4.) The ALJ did not
call a medical expert to testify at the hearing.

On
December 6, 2013, David Houston, Ph.D., on behalf of
Disability Determination Services, determined that
Plaintiff's mental impairments are not severe. (Ex. 2A,
R. 53 - 54, ECF No. 9-3.) On December 12, 2013, Donald
Trumbull, M.D., also on behalf of Disability Determination
Services, determined that Plaintiff's physical
impairments are not severe. (Id., R. 55.) Upon
reconsideration of the determinations at Plaintiff's
request, on August 25, 2014, after Plaintiff received a
consultative psychiatric evaluation by Richard Parker, Ph.D.,
(Ex. 2F, ECF No. 9-7), Jan Jacobson, Ph.D., determined that
Plaintiff's psychological condition does not result in
significant limitations in Plaintiff's ability to perform
basic work activities and, therefore, is not severe enough to
be considered disabling. (Ex. 3A, R. 61 - 64, ECF No. 9-3.)
The Disability Determination Services' review of
Plaintiff's application did not include a consultative
physical exam.

Between
the reconsideration determination and the hearing before the
ALJ, Plaintiff was examined by two physicians. First, Peter
Ameglio, M.D. performed an orthopedic evaluation on June 11,
2014. (Ex. 4F, ECF No. 9-7.) Dr. Ameglio examined
Plaintiff's right foot and reported findings of forefoot
pronation, hallux valgus foot deformity with erythema over
the medial eminence, hypermobile first tarsometatarsal joint,
decreased range of motion of the first metatarsal phalangeal
joint, painless range of motion of the ankle, subtalar joint,
transverse tarsal joints, and metatarsal phalangeal joints,
with 5/5 motor strength. (R. 271.) Based on the findings, Dr.
Ameglio assessed right hallux rigidus and right midfoot
degenerative joint disease, and he prescribed orthotics.
(Id.) In a medical source statement, Dr. Ameglio
opined that Plaintiff would be limited to light exertion, and
could stand or walk for two hours in an eight-hour work day.
(R. 267.)

On
August 14, 2015, Robert N. Phelps Jr., M.D., an orthopedic
surgeon, issued a physical examination report (Ex. 7F) and
medical source statement (Ex. 6F). In his report, Dr. Phelps
noted a varus deformity and tenderness to palpation at the
right ankle with good ankle stability, and uneven wear to
Plaintiff's right shoe secondary to the ankle varus
deformity. (R. 287 - 288.) Dr. Phelps also assessed bilateral
foot impairments consisting of pes planus deformities and
“very stiff” great toes, right thoracic
scoliosis, and a decreased range of motion in the thoracic
spine. (Id.) In a source statement, Dr. Phelps found
exertional limitations, postural limitations, manipulative
limitations, and environmental limitations. (R. 280 - 82.)

Plaintiff
argues that the findings reported by Drs. Ameglio and Phelps
in 2014 should control over the December 2013 physical
residual functional capacity findings of Dr. Trumbull, which
findings were based on Dr. Trumbull's review of
Plaintiff's then-existing medical records. Plaintiff
observes that Disability Determination Services never
obtained a consultative examination of Plaintiff's
physical impairments. (Statement of Errors at 2 - 4.)
Plaintiff contends the ALJ could not reject the findings of
Drs. Ameglio and Phelps unless another physician reviewed
their findings and provided an opinion supportive of the
ALJ's assessment. (Id. at 5.) Plaintiff further
maintains that the alleged error was not harmless because he
is of “advanced age” and would qualify as
disabled under the Commissioner's Medical-Vocational
Guidelines, Appendix 2 to 20 C.F.R. Part 404, Subpart P,
based on a limitation to light work and given his vocational
background. (Id. at 6.)[2]

Defendant
argues the findings and opinions of Drs. Ameglio and Phelps
do not compel a determination that Plaintiff's orthopedic
impairments are severe because the doctors were not treating
sources, Plaintiff's providers have treated the
impairments conservatively (e.g., Dr. Ameglio recommended
orthotics), Plaintiff's activities of daily living are
inconsistent with a finding of a “severe”
limitation, and reports in the longitudinal medical record
did not persuade Dr. Trumbull that Plaintiff's orthopedic
impairments were severe. (Defendant's Opposition at 5 -
8, ECF No. 17.) Defendant, therefore, asserts that the ALJ
...

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